Chapter 4

Sexual servitude

This chapter considers sexual servitude and human
trafficking in the context of the sex industry. It also discusses the emerging
issue of cybersex trafficking, particularly of children.

Prevalence of trafficking in the sex industry

4.1
The extent to which human trafficking, slavery and slavery-like
practices occur in the Australian sex industry was the subject of contested
views during the course of the inquiry. Some submitters and witnesses argued
that they are not a common occurrence in the industry, while others claimed that
most migrant and culturally and linguistically diverse (CALD) sex workers are
subjected to some form of exploitation.

4.2
As noted in chapter 2, in 2015–16 the Australian Federal Police
(AFP) received 169 new referrals in respect of human trafficking, slavery and
slavery-like offences, 39 of which related to sexual exploitation.[1]
The Attorney-General's Department (AGD) provided information about the breakdown
of referrals to the AFP for sexual exploitation and exploitation in other
industries since 2004:

Between 2004 and March 2017, the [AFP] referred 341 suspected
trafficked people to the Australian Government’s Support for Trafficked People
Program (Support Program). A total of 191 of these referrals related to alleged
exploitation in the sex industry. A further 113 of these referrals related to
exploitation outside the sex industry.

Historically, the majority of suspected trafficked people
identified by Commonwealth authorities have been women who have experienced
exploitation in the sex industry. However, in recent years Australian
Government statistics show that the number of suspected trafficked people
identified being exploited in other industries and in intimate relationships
has been comparable to those subjected to exploitation in the sex industry.

Since 2009, 117 of the 255 suspected trafficked people
referred to the Support Program have been allegedly subject to exploitation in
the sex work industry. The remaining 138 suspected trafficked people were
allegedly subject to exploitation in industries other than the sex work
industry or through forced marriage.[2]

4.3
However, other submitters and witnesses rejected suggestions that
human trafficking, slavery and slavery-like practices were a feature of the sex
industry.

4.4
For example, the Scarlet Alliance, the peak national sex worker
organisation in Australia, informed the committee that, '[i]t is our assertion,
along with various other sources of evidence, that trafficking is not a
widespread phenomenon in the Australian sex industry'.[3]

4.5
The Scarlet Alliance argued that biases and misperceptions about
sex workers and the sex industry were the genesis of the assumption that a
large proportion of sex workers were victims of human trafficking. The Scarlet
Alliance outlined the results of an investigation into the sex industry by the
Department of Immigration and Border Protection (DIBP) which found that:

...between 1 January 1997 and 30 December 2012, across that
five-year period, 5,378 were working in the Australian sex industry, the
majority of whom were working lawfully and, of those people, 21 per cent had
held student visas. Student visa holders working in the sex industry represent
less than one per cent of all student visa holders. It is like the massage parlour
issue. Because of the assumptions that people have, they see every Asian
student on a student visa as a potential sex worker, or they see every massage
parlour as an illegal sex industry premises, and that is absolutely not the
case.[4]

4.6
The Scarlet Alliance also discussed the practice of sex workers
choosing to immigrate to Australia to perform sex work, emphasising the
importance of such workers knowing their rights in order to prevent
exploitation.[5]
The committee was informed that such migrants use a 'variety' of visas to enter
Australia:

We did examine that in our research project [a two-year national
research project of migrant sex workers in Australia, conducted in conjunction
with the Australian Institute of Criminology]. We found that there was a percentage
under student visas and a percentage under work visas. These are the more
shorter term working visas through reciprocal arrangements that Australia has
that eligible people under 30 are able to access. Spousal and partner visas are
sometimes used. It was a spread across the different kinds of working visas.[6]

4.7
The Vixen Collective, a representative body for sex workers in
Victoria and a member organisation of Scarlet Alliance, informed the committee
that it had not seen evidence of human trafficking in Victoria.[7]

4.8
By contrast, Collective Shout stated:

...three-quarters of the Australian sex industry is located
outside of the legalised regime—in Victoria and New South Wales that is. We
find Asian women densely populated within the industry that falls outside of
regulatory measures. Around 45 per cent of these women, according to empirical
research, either have poor or fair English language skills, which means,
effectively, that they are not communicating at any proficient standard.

...You cannot assume that these women understood what was
happening and what is happening to them now by virtue of the fact that they
cannot read anything that is produced by Australian regulatory bodies, so we
cannot say that they understand what is going on...We do not know what is
happening [outside the legal] industry.[8]

4.9
Collective Shout also informed the committee that women, mostly
from China and South Korea, are provided working holiday visas or student visas
by 'migration agents or local pimps'[9]
and referred to a number of studies that illustrated that Asian women were
being trafficked into Australia on visas for the purpose of working in the
Australian sex industry.[10]

4.10
Representatives of the United Nations Office on Drugs and Crime
(UNODC) similarly informed the committee that there are 'significant
trafficking flows from South-East Asia potentially to Australia, mainly women
for sexual exploitation, but also potentially for labour exploitation'.[11]
The UNODC continued: 'from where we sit it looks like a lot of sex exploitation
cases are taking place in Australia' but generally, not many people are being
forced to immigrate to Australia from South-East Asia.[12]

4.11
The Coalition Against Trafficking in Women in Australia (CATWA)
discussed the ways in which exploitation is occurring in the sex industry:

Of the evidence we have available—which, like I say, is often
quite limited—there is variation. There is not one single model, but, of what
has been exposed, debt bondage is very common particularly in the trafficking
of women from South-East Asia. It is less common that women would be, say,
forced at the point of departure to come than that they are brought under
deception, which of course under the Palermo protocol makes it trafficking. Any
form of deception, coercion or even power imbalance does. In the cases
identified, women often might know they are not coming to work in the sex
industry. That is a very common one. They might be told they are waitressing.
They might be working in a massage parlour. Then, in actual fact, once they are
here, their passports are taken and they are told they owe tens of thousands of
dollars—sometimes hundreds of thousands of dollars—and they have to work that
off.[13]

4.12
Indeed, the Inner South Community Health Ltd (ISCH), which
provides 'drop‑in' services for sex workers in the Victorian sex industry,[14]
stated that although representatives from ISCH are not meeting sex workers who
have been trafficked into the sex industry, such people 'are more likely to be
in establishments that are going to be less encouraging to allow us in in the
first place'.[15]

4.13
In order to address the prevalence of clandestine sex trafficking
into Australia, CATWA therefore recommended:

...that demand for sexual services be recognised as fuelling
sex trafficking and, as such, be discouraged in line with the [Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention Against Transnational
Organized Crime]. Demand for sexual services must therefore be explicitly
addressed in all policy attempts to combat trafficking and that state laws
regarding prostitution be consistent with these attempts. The legislative
approach that best fits these needs is the Nordic Model...which decriminalises
all prostituted persons but discourages demand for sexual exploitation by
prohibiting pimping and sex buying.[16]

4.14
This legislative approach, discussed further in paragraphs
4.27-4.40, was also recommended by Nordic Model Australian Coalition (NorMAC)
as a way to address sex trafficking into Australia.[17]

Committee view

4.15
Despite the conflicting evidence about the prevalence of human
trafficking, slavery and slavery-like practices in the Australian sex industry,
a consistent message was that this is an issue that is, for obvious reasons,
difficult to quantify. The evidence from the Scarlet Alliance and the Vixen
Collective suggests that in the regulated sex industry, trafficking of sex
workers may not be a regular occurrence. However, as other submitters and
witnesses highlighted, unscrupulous and deceptive operators who traffic people
for the purpose of sex work are more likely to operate outside the regulated
industry. Similarly, migrant and CALD sex workers, on account of cultural and
language differences, as well as fear about reprisal and/or their migration
status, may not know where they can seek support and advice, or may be
unwilling to do so.

4.16
The committee believes that the lack of comprehensive and
up-to-date data on the prevalence of sex trafficking both to and within
Australia is a problem. Only once accurate data is available will the quantum
of the problem be apparent, and consideration can be given to how it should be
addressed. As such, the committee recommends that balanced and constructive
research into the prevalence of sex trafficking into and within Australia is
conducted, in collaboration with organisations such as Scarlet Alliance given their
expertise and networks.

Recommendation 13

4.17
The committee recommends that the Commonwealth government commission
balanced and constructive research into the prevalence of sex trafficking into and
within Australia.

4.18
The committee is concerned by the evidence of Collective Shout
and CATWA that some women are trafficked into the Australian sex industry on
the promise of other types of work and/or under the guise of a student visa. The
committee shares these concerns, and suggests that such exploitation can be
reduced by strengthening Australia's visa systems such that there is less
opportunity for third parties to abuse the visa process for the purpose of sex
trafficking into Australia.

Recommendation 14

4.19
The committee recommends that the Commonwealth government
strengthens visa systems to prevent involuntary human trafficking into the sex
industry in Australia.

International engagement

4.20
The Scarlet Alliance described some of its work with sex workers
intending to immigrate to Australia.

4.21
Ms Jules Kim, Chief Executive Officer of the Scarlet Alliance
discussed the benefits of engaging with sex workers destined for Australia
through the Scarlet Alliance Migration Project. The project funds the Empower Foundation,
which enables the Scarlet Alliance to disseminate information to sex workers in
Thailand considering travelling to Australia about their rights and
responsibilities in Australia.[18]
Ms Kim elaborated:

That has been incredibly successful and we have been able to
disseminate a lot of information to Thai sex workers. It has been borne out in
the reduction in numbers of Thai sex workers who have experienced exploitation.
Part of the rationale behind funding that particular partnership was, earlier
in the response, Thai sex workers were overrepresented in the numbers that were
coming to the attention of the AFP and to anti‑trafficking efforts. We
did a consultation with people that had experienced exploitation or had been
involved in trafficking investigations to ask them, 'What could we have done
differently, or what support could have allowed you to make different choices
at that point?' Through that initial consultation, a lot of the information
was, 'Well, we didn't know what our rights were.' Immigration does not exactly
translate information, for the most part, either. It was like, 'If we had
simple information on our rights and responsibilities in terms of migration and
legal information, that would be a huge step in being able to reduce any vulnerabilities
to exploitation.'[19]

4.22
The Scarlet Alliance considered the project to be 'a
cost-effective, practical way for the government to support trafficking
prevention efforts in Australia'.[20]

Committee view

4.23
The committee acknowledges the importance of the work undertaken
by the Scarlet Alliance Migration Project to combat sex trafficking and the potential
exploitation of these migrant sex workers in Australia. The committee is
supportive of this project and the model it demonstrates, which could also be
effective if replicated in other countries, particularly those identified as
source countries for victims of sex trafficking into Australia such as China
and South Korea.

4.24
Consistent with its view and recommendations in relation to other
types of migrant workers (see paragraphs 3.17 to 3.21), the committee believes Australian
governments should support and fund initiatives to inform migrant sex workers
about their legal rights and obligations both pre-departure and post-arrival in
Australia.

Recommendation 15

4.25
The committee recommends that Australian governments support and fund
initiatives to inform migrant sex workers about their legal rights and
obligations both pre-departure and post-arrival in Australia.

Criminalisation of the sex industry

4.26
The costs and benefits of criminalising the sex industry in
Australia was also a source of contention during the course of the inquiry. The
committee heard conflicting evidence from submitters and witnesses supportive of
criminalising the sex industry as a means by which to combat human trafficking,
and on the other hand, those that supported decriminalisation.

4.27
For example, Collective Shout encouraged the committee to:

...fundamentally understand that prostitution is a business of
trafficking and to tackle it accordingly by criminalising the sex industry's
customers, criminalising the sex industry's business people, and joining
countries like Ireland, Northern Ireland, Canada, France, Norway, Iceland,
Korea and Sweden in doing so.[21]

4.28
The approach taken by the countries to which Collective Shout
referred is commonly known as the 'Nordic model'. The committee received a
number of submissions in favour of the Nordic model.[22]
In its submission, CATWA described the model and outlined its benefits:

The Nordic Model constitutes asymmetric decriminalisation: it
directly addresses demand for prostitution and trafficking by criminalising sex
buyers and third parties who profit from prostitution, while simultaneously
supporting the victims/survivors of prostitution and trafficking.

The Nordic Model...is a legislative approach which recognises
that prostitution is a form of violence against women and, more broadly,
undermines women’s equality.

The Nordic Model functions by decriminalising prostituted
persons but prohibiting pimping, brothel owning and the purchase of sex.[23]

4.29
However, the Scarlet Alliance emphasised that the previous Special
Rapporteur on trafficking in persons, especially women and children, stated
that she found no evidence that this model reduces trafficking.[24]
The Scarlet Alliance also stated that:

...trafficking can be prevented within the existing
infrastructure in Australia. However, a prevention approach needs to continue
to be invested in, and in fact a significant investment needs to occur within
government for the prevention approach to trafficking. Australia predominantly
has maintained a criminal justice approach to trafficking, focusing on police
and surveillance, but increasing regulation, policing and surveillance are not
effective approaches to combating trafficking or explication. We need to shift
to a comprehensive, multifaceted and evidence-based prevention approach which
supports culturally and linguistically appropriate sex worker peer education,
in-country partnerships with sex worker organisations in countries of origin,
decriminalisation of sex work and the accessibility of civil remedies for those
who have experienced exploitation.

... There is no evidence that criminalisation will reduce
trafficking. In fact, we believe it does the opposite by eroding the human and
civil rights of sex workers, including migrant sex workers, by reducing sex
worker control over our work and workplaces. Criminalisation of our work, our
clients or our workplaces makes us vulnerable to exploitation.[25]

4.30
Similar evidence was given by the Vixen Collective, which argued
against the type of criminalisation established under the Nordic model, on the
basis that:

...it comprehensively cuts off the ability of sex workers to
access assistance from police when we are subject to violence, which is of significant
concern; and it cuts off access to justice through the courts. It also cuts off
access to those remedies for potential victims of human trafficking, and has
the tendency to push sex work underground and make it less visible to police
when things are going wrong both for sex workers and for victims of human
trafficking, which is not advantageous.[26]

4.31
Indeed, Scarlet Alliance, Vixen Collective and a number of other
organisations advocated for the full decriminalisation of the sex industry.[27]
Vixen Collective defined decriminalisation as:

...the removal of all criminal laws relating to the sex
industry, allowing sex work to be regulated like other work - this does not
mean no regulation, but that sex work should be regulated like any other work.[28]

4.32
The Vixen Collective also listed a number of benefits of
decriminalisation, including:

Decriminalisation recognises sex
work as work, helping to break down stigma against sex workers and reduce
discrimination.

It has been shown that [sexually
transmitted infection] rates and safe sex outcomes are maximised under
decriminalisation.

Under decriminalisation there is
less waste of police resources on enforcement and sex workers are better able
to access assistance when in need because of improved relations with police.

It has been shown that sex work as
regulated under decriminalisation has little to no amenity impacts.

Access to justice is improved for
sex workers under decriminalisation, including an improved ability to pursue
criminal cases against those who perpetrate violent or sexual offences against
sex workers, but also civil protections (such as restraining orders).

Decriminalisation would give sex
workers better access to workplace safety, including state apparatus such as
WorkSafe Victoria and the Fair Work Ombudsman.

Decriminalisation would give sex
workers greater ease to access health services, without the requirement to
'out' themselves - as is required due to mandatory testing under current
licensing regulations - which has been shown to lead to discriminatory
treatment and exclusion from medical services.[29]

4.33
ISCH submitted that 'Commonwealth advocacy for decriminalisation
of sex work by the States would also be an effective strategy to minimise
trafficking of sex workers', referring to a 2015 Amnesty International report
that stated:

...there is no evidence to suggest that decriminalisation
results in more trafficking. To the contrary, it finds that when sex work is
decriminalised, sex workers are better able to work together and demand rights,
leading to better working conditions and standards and greater oversight of the
commercial sex industry and potential trafficking within it. When they are not
threatened with criminalisation, sex workers are also able to collaborate with
law enforcement to identify traffickers and victims of trafficking.[30]

4.34
By contrast, Collective Shout argued in its supplementary
submission:

A 2015 study carried out in NSW surveyed 309 men as customers
of the sex industry, and found these men had mostly been prostituting women
even before the sex industry was decriminalised in that state: ‘the average
length of time men had been procuring sexual services was 21 years’. In other
words, the men, in general, had previously ignored prevailing laws in NSW. They
were frequent customers of the NSW sex industry: ‘almost 59 per cent of the men
who answered this question (based on n =262) stated they purchased sex weekly,
fortnightly or monthly (n =154)’. Furthermore, the ‘[m]en were asked if they
would stop purchasing sexual services if it was recriminalized in New South
Wales. The majority of men indicated that they would not (69.3 per cent, n
=180)’.[31]

4.35
Regulation of the sex industry was also raised as an important
issue. The Scarlet Alliance made the following comments about regulation of the
sex industry:

Regulatory tools that have been used to monitor, regulate,
and license the sex industry in Victoria have disadvantaged sex workers,
insufficiently protected the rights of marginalised groups and enabled the
unfair treatment of sex workers by Victorian Police, Immigration, and the AFP.
This has not resulted in safer or fairer workplaces; these bodies have not
found evidence of human trafficking despite regular compliance checks of
licensed brothels, and have managed only to deport migrant sex workers working
of their own volition.[32]

4.36
Indeed, the Scarlet Alliance considered that as violations of sex
industry regulations are not trafficking offences, they should not be treated in
this manner, as this harms sex workers 'and is the result of police acting on
perceptions rather than responding to evidence'.[33]

4.37
ISCH argued against regulation specific to the sex industry, on
the basis that the human trafficking offences in the Criminal Code Act 1995
(Criminal Code) are effective to address any such offences that might arise in
the sex industry:[34]

A non-universal response directly related to trafficking for
sex work would further encourage ‘the stereotype that exploitation and the sex
industry are inherently linked and therefore migration for sex work equals
trafficking’ (Kim and Jefferies, 2013), which is widespread and often recycled
in the media.[35]

Committee view

4.38
The committee has not formed a view about the appropriateness or
otherwise of implementing the Nordic model in Australia. The committee
acknowledges the opposing and often passionately held views of submitters and
witnesses on this issue, and stresses that any consideration of criminalised or
decriminalised models for regulating the sex industry as a means of addressing
sex trafficking must take into account the:

benefits and harms likely to result for sex workers; and

extent to which any model will reduce human trafficking in the
sex industry.

4.39
The committee also reiterates the need for balanced and
constructive research into the prevalence of sex trafficking into and within
Australia so that the quantum of the problem can be properly understood before
possible solutions are proffered.

4.41
IJM defined cybersex trafficking as 'the live streaming sexual
exploitation of children viewed over the internet', noting that it was 'unimaginable
before the digital age' and 'involves different criminals and different, often
younger, victims' than 'traditional trafficking'.[37]
IJM elaborated:

Before the proliferation of the internet, customers had to
physically go to a bar or brothel to purchase sex from victims who were often
young women or teenagers. Now paedophiles and abusers located anywhere in the
world but typically from countries like our own can exploit children without
ever leaving the comfort of their own home.[38]

4.42
In its submission, IJM stated that '[n]ot enough is currently
being done to address these crimes in the Australian intergovernmental response
to human trafficking'.[39]
For example, IJM considered that cybersex trafficking should be directly
addressed by the existing strategies within the National Action Plan to
Combat Human Trafficking and Slavery 2015–19.[40]

4.43
IJM provided detail about the global growth of cybersex
trafficking, including in Australia. For example, IJM noted that:

There has been an increase in the
number of convictions under ss 474.26 and 474.27 coming before courts in NSW
and Victoria. Data from NSW and Victoria from 2010 to October 2016 indicates
that there have been at least 279 convictions for offences under s 474.26. Data
from Victoria alone indicates there were 124 convictions under s 474.27 from
2010 to 2015. By contrast from October 2008 to November 2013, there were only
150 cases involving s 474.26 or s 474.27 in NSW Higher Courts; and

In February 2015, the AFP reported
receiving 5617 referrals of online child sexual exploitation in the 12 months
prior, an increase of 54% from the period before. The figure for the whole of
2015 was 11,000.[41]

4.44
One of the recommendations made by IJM was, therefore, that the
AFP should be adequately resourced 'to improve their investigation of cybersex
trafficking cases, particularly through the use of covert personas'.[42]

4.45
The committee also heard about the existing legal framework used
to prosecute these offences. IJM referred to the current provisions relating to
a carriage service to procure persons under 16 years of age at sections 474.20
and 474.26 of the Criminal Code as being inadequate to address cybersex
trafficking, as:

...the average sentence is significantly lower than that
maximum sentence, and the maximum sentence for human trafficking offences under
the Commonwealth Criminal Code is significantly higher than that 15 years.

4.46
In response, the IJM made a number of recommendations to the
committee in respect of legislative reform.[43]
For example, IJM recommended that consideration should be given 'to legal
avenues by which to prosecute cybersex trafficking offences as a sexual
servitude or slavery offence, or as aiding or procuring such offences'.[44]

4.47
The committee also heard from representatives of the UNODC about
the prevalence of cybersex trafficking. Specifically, Mr Benjamin Smith informed
the committee that:

...it is our understanding that the numbers are quite high. You
are particularly looking at situations where you have, say, children in the
Philippines or even now in Thailand—children based here—who are being sexually
exploited on webcams. These webcams are then streaming the content live to
countries all over the world, including Australia. That sort of trafficking is
taking place in that way.[45]

4.48
Mr Jeremy Douglas added:

We have worked with a couple of countries in the region to
start to criminalise online child pornography. In late 2015, we were successful
in getting Thailand to criminalise this. But there are still quite a few
countries here in the region that have not criminalised this offence, so there
is a very significant gap in the laws within the region. It is particularly
across the Mekong. It is easy for people to set up with very little criminal
implication within these countries and, as Benjamin said, to stream this all
over the world. We are actually looking right now at taking the lessons that we
had from the Thai experience and the law that was developed here and trying to
promote that within some of the neighbouring countries.[46]

Committee view

4.49
The committee shares the concerns raised by IJM and the UNODC
about the growing prevalence of cybersex trafficking, particularly as babies
and children are the most common victims. The committee considers that more should
and must be done by the Commonwealth government to address this horrific crime
where it is perpetrated by an Australian or within the Australian jurisdiction
(irrespective of the location of the victim).

4.50
On the basis of the evidence presented to it, the committee
recommends that the Commonwealth government investigates the adequacy of
current legislative provisions and criminal offences to address cybersex
trafficking and makes legislative amendments as necessary where current
arrangements, including the provisions of the Criminal Code, are ineffectual.

Recommendation 16

4.51
The committee recommends that the Commonwealth government
investigates the adequacy of current legislative provisions and criminal
offences to address cybersex trafficking and makes legislative amendments as
necessary where current arrangements, including the provisions of the Criminal
Code Act 1995, are ineffectual.